Friday, August 23, 2013

Insurance Bad Faith

Insurance Bad Faith Law Gets an Update

California has long been considered a benchmark state with regard to the development of insurance bad faith law. What California pioneers, many other states often implement. As such, updates to California’s bad faith landscape have wide reaching impact on the larger body of insurance bad faith law. For consumers and attorneys alike, maintaining at least a basic understanding of the state of the law in California can have significant benefits.

What is bad faith?

For the layperson, bad faith law essentially makes insurance companies liable if they treat their clients unfairly. What exactly constitutes unfair treatment is complex, and currently under some flux, but the summation is as follows; implied in every contract is a commitment to treat the other parties fairly as the contract unfolds. Known as the implied covenant of good faith and fair dealing, this provision ,imposed on every contract by operation of law, requires parties to act in good faith as they carry out their duties under the agreement. In playground terms: No Cheating.

In the insurance setting, the list of things that constitute “cheating” by an insurance company is fairly long. Some types of bad faith are defined in specific laws while others are simply enforced by courts based on reasonable expectations. Some of the most common mistakes an insurer might make, and thus leading to potential liability, include:

  1. Withholding information from an insured, the beneficiary of a policy.

  2. Refusing to settle a claim for which liability is reasonably clear, otherwise known as “gambling with a client’s money.”

  3. Low-balling, or giving extremely unreasonable, settlement offers.

  4. Wasting everyone’s time with baseless delays; legal or procedural.

Third-party rights

In the world of insurance litigation, a third-party is anyone who stands to collect a benefit, such as monetary payment, from an insurance contract owned by someone else. This might include hospitals which provide treatment to an injured person based on an expectation of later receiving payment out of an insurance settlement or the injured plaintiff themself in any lawsuit that may ultimately be covered by a defendant’s insurance policy. While the definition of a third-party is relatively clear, what rights those entities may have has changed somewhat over the years.

In August the California Supreme Court ruled that, while third-parties cannot sue an insurance company for bad faith unless they have some contractual relationship with that insurance company, other avenues may cover the same ground. In other words, bad faith is a legal remedy reserved for people who are actually contracted with an insurance company and is designed to help those people gain the full benefits of their arrangements. That is, the policies for which consumers pay good money for, should give a benefit in the event of an occurrence. But this understanding of bad faith law does not preclude lawsuits based on other legal theories just because the underlying facts might support both types of suits.

Other avenues

The Court’s ruling leaves open some potentially novel avenues by which third-parties, typically the plaintiffs in personal injury lawsuits, can pursue insurance companies for bad-faith like practices, even in circumstances traditionally blocked by limitations to third-party suits. In another recent decision, a California Court of Appeal further expanded these options when it allowed a third-party to sue a defendant’s insurance company for bad faith, failure to notify the injured party about a claims reporting deadline, under a med-pay clause of a policy for which primary liability had already been settled.

Plaintiff’s bottom line

While the full extent of these rulings will not be known until more cases come down the pipe dealing with these issues, recent rulings may provide injured plaintiffs with an expanded range of possible options for recovering their damages in some situations. This ultimately makes it more likely that your attorney will be able to get you the settlement to which you are entitled. Stay tuned as we continue to monitor the ongoing developments in this critical area of personal injury law.

Thursday, August 22, 2013

Pedestrian & Bicycle Accidents

Vehicle accidents are bad; vehicle accidents involving pedestrians are worse. If you have been hit while jogging, riding your bicycle, or just crossing the street, we can help. Drivers are required to operate their vehicles with due care, and when they act negligently it can have potentially dangerous consequences.

There are many different causes for pedestrian or bicycle accidents, but most involve vehicle collisions with innocent bystanders. Some of the more common collision occur when:

  • A driver is distracted because of actions that he taking while driving, i.e. texting, eating, sleeping
  • Drivers fail to yield because they do not know the California Vehicle Code
  • Drivers fail to give right of way to pedestrians because they are in a rush
  • Drivers lose control of the car due to excessive speeding and improper lane changing
  • Drivers disobey traffic signals because of lack of due care
  • Drivers fail to utilize headlights when conditions require that they be utilized.

Survivors of any of these types of accidents often have a long road to recovery and can incur large medical bills in the process, not to mention the pain, suffering and disruption of normal life activities they face. A good personal injury attorney can help to simplify the process by working with insurance companies, dealing with the other parties involved, and arranging for appropriate medical coverage as necessary. If you've been inured in an accident, don't jeopardize your legal rights or postpone your medical treatment, contact an attorney immediately.

Dangerous Properties

Negligent property maintenance, dangerous conditions, even improper lighting can all lead to premises liability. If you have been injured or attacked while on someone else’s property, such as a store, parking lot, pool, or bar, you may have legal rights. Landlords, property owners, and even shopkeepers may face liability when they fail to maintain safe premises. We can help to ensure that you receive the compensation you deserve.

The owner of property has a duty to use reasonable care to keep the property safe from dangerous conditions. However, it is not too uncommon, for a resident, manager of a property, or independent contractor working on the premises who causes the premises to become unsafe.

These individuals could potentially be liable for the injuries incurred on the property that was unsafe. Most of the time it will come down to who had control of the premises. If a manager has the right to control property, then that manager must exercise control in a reasonable manner to prevent foreseeable injuries.

Furthermore, an owner or occupier of property must use reasonable care to inspect the property and discover any unsafe conditions. The owner or occupier has a duty to correct, repair, replace, or give adequate warning of any condition that could be reasonably expected to harm others.

Wednesday, August 21, 2013

Gang Enhancement

A gang enhancement is not technically a separate crime but rather an extra charge that increases the penalties available for conviction of a number of underlying offenses. You might be charged with a gang enhancement if the prosecution thinks that you committed a crime for the benefit of a gang. Specifically, a gang enhancement adds an extra layer of punishment on top of the punishment you might face for the underlying crime.

In other words, a gang enhancement allows a judge to add additional, consecutive time to the maximum penalty for crimes if it is found beyond a reasonable doubt that the defendant has committed criminal acts for the benefit of his gang. While the California Street Terrorism Enforcement and Prevention Act makes it a crime just to be an active member of a gang, a gang enhancement requires that a felony charge, other than a gang charge, be lodged against the defendant.

A successful conviction under the gang enhancement statutes could add anywhere from 5 to 25 years to your sentence. But being charged with a gang enhancement is not the same as being convicted.

There are defense strategies available like:

Challenge the underlying felony

If there is no underlying felony, there can be no gang enhancement. Specific defenses apply to different sets of crimes, and it always dependent on your particular case. Common defenses used include, but are not limited to: self defense, defense of others, and coercion.

Prove that you are not an “active participant” in a gang

Gang enhancements cannot be added to a sentence unless the defendant's active participation in a criminal street gang is proven beyond a reasonable doubt.

Prove that you were not acting “for the benefit” of a gang

Similarly, a defendant cannot be given a gang enhancement if the underlying felony had nothing to do with the gang. A defendant can argue that they committed the felony solely for personal reasons. One example of a case that I worked on was an attempted murder case, in which the defendant shot his brother-in-law for hitting his sister. The prosecution tried to prove that he committed the criminal act for the purposes of benefiting the gang.

If you are facing criminal charges you should seek legal help immediately.

Assault & Battery


Though often used interchangeably, assault and battery are two different crimes with different possible punishments. Roughly speaking, an assault is an attempt to hit someone while a battery is a successful attempt to hit someone.

Under California Penal Code §240, an assault is an intentional attempt to apply of force another person coupled with the present ability to carry out that intent. The prosecution must prove all of the following elements to convict a defendant of assault.
  • Willfully 
  • Taking an action likely to cause an application of force to another person
  • With the present ability to cause an application of such force 


A battery is defined in CPC §243 and includes all the elements of an assault coupled with an injury. Specifically a battery conviction requires the prosecution to prove that the defendant:
  • Willfully 
  • Used force or violence 
  • Upon another person 

Both charges have several possible defenses depending on the circumstances including self-defense and you should seek immediate legal assistance if you have been charged with an assault.


In general terms, murder means taking the life of another person. However, the specific crime with which a defendant can be charged varies significantly because under California law there are a number of degrees of murder ranging from attempted murder to first degree murder. California law actually has three broad categories of murder, each with multiple sub-categories.

First-Degree Murder

Murder in the first degree involves the premeditated killing of another person. Under certain circumstances, the prosecution may seek the death penalty for a first-degree murder. You can be convicted of first-degree murder if:

You committed a murder:
using a destructive weapon or explosive, a weapon of mass destruction, ammunition primarily designed to penetrate metal or armor, or poison; or
by lying in wait for someone or inflicting torture
by a killing that was willful, deliberate, and premeditated; or
if someone dies while you are committing certain felonies (described under the Felony Murder Rule).
<;br />A capital murder is one in which the prosecution may seek either the death penalty or life in prison without the possibility of parole and can be charged whenever there is a murder with special circumstances such as:

  • a murder involving more than one victim
  • murdering someone for financial gain
  • murdering a police officer, firefighter, prosecutor, judge, juror, or elected official
  • murdering a person because of their race, color, religion, nationality, or country of origin
  • murdering someone while discharging a firearm from a motor vehicle
  • murdering someone for the benefit of a gang
  • murdering a witness to prevent them from testifying
  • certain felony murder situation

Second-Degree Murder

Generally, a second-degree murder is a murder in which the killing was willful but not deliberate and premeditated. This could include actions such as shooting a gun into a crown or driving while under the influence and causing a death.

Felony Murder Rule

Under California law the felony murder rule can apply to both first and second degree murders. Essentially, the crime sets up liability for deaths which happen during the commission of a dangerous felony. The murder need not be intentional, even a negligent or unforeseeable death may qualify.

The first-degree felony murder rule only attaches to specific underlying felonies which are:
  • Arson
  • Robbery
  • Burglary
  • Carjacking
  • Train Wrecking
  • Kidnapping
  • Mayhem
  • Torture
  • Sex Crimes such as rape, forced oral copulation, forced penetration, and lewd acts with a minor
The second-degree felony murder rule can attach to any underlying felony which is both inherently dangerous and not specifically listed under the first-degree rules (see above).

The general elements of any murder are:
  1. Committing an act that results in the death of another person or a fetus
  2. Committing that act with malice aforethought, and
  3. That the killing was without lawful excuse or justification.

Getting Legal Advice

As you can see from the above material, a murder charge under California law can involve a lot of complex factors and the penalties differ substantially. If you have been charged with any type of murder you are strongly advised to seek legal counsel immediately to protect your rights.

Domestic Violence

Due to the stigma and severe penalties associated with domestic violence, it is not uncommon for individuals to falsely accuse another of domestic violence. The motivation could be as simple as revenge for cheating or an attempt to gain an advantage in a dissolution proceeding. It is important that you seek an attorney so that the whole truth may be disclosed. Far too often, the accused faces allegations that do not resemble reality. We will aggressively investigate the facts particular to your case and represent you passionately.

Corporal Injury on Spouse/ Cohabitant

California Penal Code § 273.5. (a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.

Domestic Battery

California Penal Code § 243 (e) (1). When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiancĂ©, or fiancĂ©e, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment. If probation is granted, or the execution or imposition of the sentence is suspended, it shall be a condition thereof that the defendant participate in, for no less than one year, and successfully complete, a batterer's treatment program, as described in Section 1203.097, or if none is available, another appropriate counseling program designated by the court. However, this provision shall not be construed as requiring a city, a county, or a city and county to provide a new program or higher level of service as contemplated by Section 6 of Article XIII B of the California Constitution.

Corporal Injury on a Child

California Penal Code § 273d. Any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, four, or six years, or in a county jail for not more than one year, by a fine of up to six thousand dollars ($6,000), or by both that imprisonment and fine.

The above cited statutes are all domestic violence crimes, in which the victims are specially classified due to their vulnerability. Domestic violence is a serious allegation and comes with harsh punishments for those accused and convicted. The prosecution also has substantial discretion in pursuing a domestic violence charge, even if the victim desires to drop it.

A slight injury that causes a bruise or swelling is sufficient to be charged under the corporal injury statute. Under the battery statute, there does not need to be a visible injury.

Identity Theft

California Penal Code § 530.5 (a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170.

Theft is not limited to personal property like vehicles, jewelry, and money. A defendant may also be charged with stealing or taking the identity of another. Identity theft is a felony that has gained the attention ion of the public. Technological and digital advances have made it easier for defendants to use an identity in an unlawful manner.

Even a simple “hack” of someone’s twitter account could lead to possible criminal liability under this statute. If a defendant used someone’s personal information to access a twitter account and post explicit information, without the consent of the accountholder, the defendant could be charged for identity theft because he committed an unlawful act. It does not have to be a criminal unlawful act; it could also be a civil tort.

Grand Theft Auto

California Penal Code § 487 (d) When the property taken is any of the following:
(1) An automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or pig.

Grand theft auto is the crime of grand theft proscribed in subsection (d) of section 487 of the California Penal Code. Please see the section on “grand theft.” A defendant charged with grand theft auto may be able to face a less serious offense if he can prove that he did not intend to permanently deprive the owner of the vehicle. The crime of joyriding requires that the person intend to temporarily deprive the owner of the vehicle, and it usually is charged as a misdemeanor. It is important to be represented by an attorney in any legal proceeding. In the case you have been charged with grand theft auto, you need to have an advocate helping you to protect your legal rights.

Joy Ride Lesser Offense

California Vehile Code § 10851 (a). Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.

This crime is similar to grand theft auto in that involves a defendant taking a vehicle without the consent of the owner. Please see section on “grand theft auto.”

Typically charged as a misdemeanor, a defendant charged with this crime may be able to successfully defend on the theory of consent or lack of intention. Consent means that the owner of the vehicle gave you permission to drive the vehicle for a period of time. It is important to note that the defendant must stay within that scope of permission. For example, if a friend said that you may drive his Bentley to grab some groceries, you cannot drive the Bentley to Vegas. That would be outside of the scope of consent.

Our law office would also explore other defenses, like whether the defendant had the intent to deprive the owner of his or her title. Furthermore, with a crime like joyriding – police sometime engage in unconstitutional searches and seizures. We would be aggressive in our defense on possible constitutional issues.

Grand Theft

California Penal Code § 487. Grand theft is theft committed in any of the following cases: (a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950)…

The statute for this crime gets more complicated as it lists different ways in which a defendant may be charged for this crime. Furthermore, depending on the item stolen, the value needed for a grand theft may decrease to $250. Grand theft can also be committed in a myriad of ways. If you have been entrusted with property, and you embezzle it, you can be guilty of grand theft by embezzlement. If you defraud someone into giving his or her property to you so that you can permanently deprive them of it, you can be guilty of grand theft by trick. Regardless of how grand theft occurs, it is important that the person charged be represented by an attorney. Depending on the circumstances, we may be able to lower the charge to a misdemeanor.


California Penal Code § 215 (a). "Carjacking" is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.

This felony is not the same crime known as grand theft auto. Carjacking requires that the defendant take the vehicle with force or fear in the immediate presence of the owner or passenger. Therefore, if you have been charged with this crime and you believe that force or fear was not used, the prosecution may be unable to convict you. There are also many defenses available to a defendant charged with carjacking. A person may be wrongly accused of carjacking when there was an agreement for the defendant to borrow the car. A victim may also misidentify the defendant.

Petty Theft

California Penal Code § 488. Theft in other cases is petty theft. Shoplifting is a petty theft crime because a majority of the items stolen from a convenience store are valued under $950. Petty theft is the sister crime of grand theft and falls under the umbrella of “theft crimes.”

The crime may be a misdemeanor but that does not mean there are no consequences. A misdemeanor is on your record permanently and could affect future employment. It also carries a possible six month jail sentence, and three year probation period.

There is even the possibility that you pay a $1,000 fine. Attempting to steal a video game could cost you more than losing out on some quality gaming. It is always important to be represented by an attorney. Our office is aggressive in criminal defense and would explore all possible defenses, including the possibility that the defendant inadvertently held onto the merchandise as he or she exited the store.


California Penal Code § 459. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel…with intent to commit grand or petit larceny or any felony is guilty of burglary…

This crime, typically referred to as a “breaking and entering,” could lead to a six year sentence, in the event of a conviction. Burglary comes with harsh penalties but it does not mean that the prosecution does not have to prove their case beyond a reasonable doubt.

The prosecution will have to prove every single element of the offense for there to be a conviction. The most litigated element is typically the intent to commit a felony therein. For example, a defendant would not be guilty of burglary if he entered a building for the purposes of committing petty theft. Petty theft is a misdemeanor, not a felony.

We can aggressively defend you against this criminal charge. Because burglary can be charged as either a felony or misdemeanor, depending on the circumstances of your case, it is important to seek representation immediately.

Cocaine, Meth, and Other Drugs

California Health and Safety Code § 11350 (a). Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

These crimes are similar to marijuana crimes. Please see the section on “Marijuana laws.”

Even with states like Colorado and Washington taking a liberal view on marijuana and recreational drugs, Federal law still prohibits the use, possession, transportation, and sale of marijuana and “hard” drugs. California has also been aggressive in prosecuting individuals under drug statutes that related to cocaine, meth, and other synthetic drugs.

Drugs can destroy lives and it can hurt families. Besides being a health issue, it is also a legal issue. Without adequate and aggressive representation by an attorney, a defendant could face legal consequences that could have been avoided. Do not face a drug charge without a lawyer who understands the law and procedure regarding your arrest and rights.

Marijuana Charges

Marijuana, or cannabis, is a legitimate drug that has proven medical benefits. It has assisted patients with chronic pain and has helped patients eat when they do not have the appetite to do so. Despite these benefits, it has been a punchline for comedians and a dividing topic among political officials.

California law regarding marijuana can be severe. The law prohibits a wide variety of behavior, including possession of even small amounts of the substance. To make matters worse, “the war on drugs” encourages police and law enforcement to engage in unconstitutional behavior. Drug enforcement agents have, in the past, entrapped defendants, performed unlawful searches, and exaggerated police reports.

The prisons in California are over-capacity. Prisoners face crowded conditions, which may be unconstitutional by itself. Defendants detained on drug crimes need to have adequate representation to ensure that their rights are preserved.

Marijuana Possession

California Health and Safety Code § 11357 (a). Except as authorized by law, every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, or shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

Marijuana Sale

California Health and Safety Code § 11357.5 (a). Every person who sells, dispenses, distributes, furnishes, administers, or gives, or offers to sell, dispense, distribute, furnish, administer, or give, or possesses for sale any synthetic cannabinoid compound, or any synthetic cannabinoid derivative, to any person, is guilty of a misdemeanor punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.

Marijuana Cultivation

California Health and Safety Code § 11358. Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

Marijuana Transportation

California Health and Safety Code § 11360 (a). Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three or four years.

Marijuana Paraphernalia

California Health and Safety Code § 11364 (a). It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking (1) a controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (2) of subdivision (d) of Section 11055, or (2) a controlled substance which is a narcotic drug classified in Schedule III, IV, or V.

Tuesday, August 20, 2013

Criminal Appeals

Have you or a loved one already been convicted of a crime? We can still help!

We have experience in all aspects of post-conviction criminal law including Expungements, Certificates of Rehabilitation, Habeas Corpus Petitions, Parole Hearings, and Prisoner's Rights defense.

Filing a Petition for a Writ of Habeas Corpus

The California Constitution gives citizens the right to file a petition for a writ of habeas corpus in extraordinary and unusual circumstances. The habeas petition allows a detainee to challenge his or her confinement. The most common ways to effectively challenge your conviction is through new evidence.

Appealing a Felony or Misdemeanor

When a person is convicted, it does not necessarily mean the case ends there. If the defendant feels as if there has been a legal error, the defendant may file an appeal. An appeal is a challenge of the record and it is limited in scope.

California Board of Parole Hearing (Lifers Hearing)

An inmate serving a life sentence, or “lifer,” in California may have an opportunity to be released on parole. Before the inmate is released, however, he or she must first appear before the Parole Board at a hearing. Attorney Chris Blaylock has helped prepare inmates for parole and has been three for three (3/3) on getting a parole date.

Expungement in California

A person who has committed a felony or misdemeanor in the past may have the possibility of removing from his or her record. In California, this process is called an expungement. While it does not completely eliminate your criminal record, it does give you certain protections against discrimination on the basis of the conviction.

Certification of Rehabilitation

Like an expungement, a California Certificate of Rehabilitation is a way to put a person’s conviction behind them. Although it will not erase a person’s conviction, it will be a declaration from California that the person is a law abiding citizen. It is difficult to pursue this without an attorney.

Prisoner’s Rights

An inmate has certain constitutional rights like all other citizens who live in a civilized society. This means that there must be some standard of decency at the prison where the inmates are detained. Criminal defense lawyer Attorney Chris Blaylock believes that inmates should be treated with dignity.

Saturday, August 10, 2013

Collateral Source Rule Today

Hospital bills after an accident

For most people who are injured in an accident, fretting over the medical bills is the furthest thing from their minds. But eventually, it becomes something that the injured must confront. It is common knowledge that medical bills are expensive and that there are often ways to reduce the amounts actually paid on those bills. For example, private insurance companies and government entities such as Medi-Cal routinely pay less than a hospital originally billed; either as a result of a previously negotiated discount contract or because of legislation that dictates maximum payments for certain procedures. Furthermore, many medical providers, particularly larger charitable hospitals, often offer need based discounts to individuals in certain income brackets. As a result, the amounts a provider bills out often bear little relationship either to the amount they will ultimately collect or to the actual hard cost of providing the included services.

Because of this widely known discrepancy, there exists an extremely complex medical services market in which different categories of patients pay different rate levels under different circumstances with insurance providers, lien holders, medical financiers, and government entities muddying the waters even further. Thus it is that when many accident victims are faced with choices about how to receive medical services, sometimes under the added stress of an emergency setting, the first thought on most patient’s minds is how to avoid as much of the potential expense as possible. It is important to understand that some kinds of payment can impact the amount and sources of any later legal recovery to which you may be entitled as a result of your injury.

Unfortunately, the world of hospital economics has become so convoluted in the United States that the advice of a qualified personal injury attorney is now recommended right from the beginning, if possible even before medical services are rendered, though not to the exclusion of emergency treatment. While the legal landscape surrounding medical payment recoveries is rough and currently in flux, a basic understanding of some of the key concepts at work can help.

What is tort liability?

Whenever a person does something carelessly which leads to another person’s injury, the first person – known in legalize as the tortfeaser – may be legally responsible for the injury. Usually by way of paying for medical costs associated with the injury. This basic concept underpins all of personal injury law, but it is limited or modified by several corollary rules which can apply in different combinations in different settings and by obscure rules of court which dictate the procedural aspects of a personal injury trial or settlement.

The collateral source rule

With the rise in private insurance many years ago came a concordant rise in the number of injured people who did not have to pay their full medical bills out of pocket because those bills were paid by a health insurance provider. To avoid allowing the party responsible for the injury to benefit from the injured party’s prudent choice to obtain health insurance, courts developed the collateral source rule to ensure that the defendant – the person responsible for an injury or accident – paid the full amount of the injury, not just that part the injured person had to pay out of pocket. Without the collateral source rule a defendant would reap the ultimate benefit of an insurance policy paid for by someone else. Moreover, the health insurance provider had to bear the costs of the defendant’s negligence.

For example, let’s say that two people are involved in a car accident. Driver A ran a red light hitting Driver B and broke his leg. Driver B goes to the hospital and is treated for the break. The hospital bills Driver B incurs is $1000 for treatment. However, Driver B is covered by an insurance plan that pays 80% of the bill meaning that Driver B only has to pay $200 out of pocket. In court, Driver A might argue that he should only have to pay for the $200 that Driver B actually paid out of pocket, contending that this amount is the real value of the injury. The collateral source rule steps in to prevent this injustice by requiring Driver A to pay for the entire hospital bill, unless other circumstances exist, even though part of the bill was paid off by Driver B’s insurance provider.

In a similar way, gifts made to Driver B from other third parties like generous hospitals or kind hearted doctors will similarly not be deducted from the amount demanded of Driver A under the law.

Previously negotiated rate discounts

While the collateral source rule is still very much in effect today, its application has been somewhat limited by recent court decisions; particularly with respect to the discounted rates many insurance carriers negotiate with medical providers as part of their in-network coverage agreements. Under these agreements, an insurance company and a hospital, for example, might agree that any patient covered under a policy written by the insurance company, who seeks treatment at the hospital, will only be liable for 50% of the billed rates. In other words, if Driver B were to visit this in-network hospital he would be charged only $500, instead of the usual $1,000, for the same broken leg, with the insurance company paying $400 and Driver B left with an only $100 out of pocket expense.

In several recent cases, the parties have argued that this type of discount should be treated the same as the earlier collateral source example we gave and therefore that Driver A should still be liable for the full $1000 the hospital would “normally” charge. However, California courts have not seen things this way. Several courts have decided that because the negotiated discount was arranged prior to the injury in question, and is not specifically related to the provision of care to Driver B, neither Driver B nor anyone else would, ever have to pay the full $1000 and therefore that the real value of treatment was at most the $500 negotiated rate. In short, because Driver B’s insurance company had the foresight to negotiate a lower rate for patients it insured, Driver A now gets to pay less for causing the same injury.

What does all this mean?

While the details are complex and filled with legalize and healthcare economics math, the outcome has real consequences for everyday patients. The bottom line is that if you are injured in an accident, your best bet is to seek immediate legal help; we understand the law in regards to evaluating the real damages that you have incurred.

An experienced personal injury attorney can help you to understand specifically how the various laws are likely to impact your particular case which might impact your later legal strategy. Ultimately, a good attorney can help to make sure that you are fully compensated for your injury whatever the circumstance under which your medical bills are paid.